The Ancient Writ
The Hamdi case before the Supreme Court promises to settle the legal merits, or lack thereof, of the government’s retention of those classified by the executive branch as enemy combatants without a hearing before an impartial judge. Such an action by the government is, in legalese and in regards to domestic cases, known as a suspension of the writ of habeus corpus, a legal principle which requires that the government present an accused and arrested person before an impartial judge in order to prove that there exists just cause to hold that person against his or her will. The constitution provides that “The privilege of the writ of habeus corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” As the president’s legal advisors have made it clear that such discretionary executive authority applies to both domestic as well as foreign cases, in arguing their case the government will be required to more specifically articulate the definition of war in regards to its use in the oft used phrase “war on terrorism.” Although some may be inclined to quibble about the likeness of this line of thought with defining what “is” is, the definition of war is critically important in determining how nation states go about waging it, a topic of considerable importance and impact. The government’s repetitive use of the phrase “war on terrorism” is itself an indication of where their line of argument will go. The nation is at war. It is a new kind of war, requiring that broader authority and discretion be given to the executive branch in order to ensure the public safety.
Such a line of argument, however, must address several difficult legal issues. First, it must address the legal definition of war, both national and civil. Second, it must address the legal definition of terrorism. Third, it must address how domestic terrorism is separate from criminality and in what cases this separate characterization applies. Fourth, and in relation to the preceding, it must address the domestic use of the military or, if not, what force and what type of force is appropriate to fight such a war. Lastly, it must address how the public safety is best protected and what poses the gravest threat, the domestic war on terrorism or the long term impacts of the restriction of civil liberties and broad increases in executive authority and discretion in combating this new kind of war.
In relation to the suspension of the writ, the conjoining of the terms “war” and “terrorism” provide a basis for classifying the terrorist as an enemy combatant, thereby rendering the use of the term suspension of the writ inapplicable as no charge of criminality is made, rather the commander-n-chief’s authority in time of war is exercised. Such an argument is weak however as the definition of terrorism has always been conjoined with criminality, being an illegitimate use of force, whether in wartime or peacetime. Those who resort to terrorism in wartime are called war criminals.
"All criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public".
2. UN Resolution language (1999):
"1. Strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed;
2. Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them". (GA Res. 51/210 Measures to eliminate international terrorism)
It will be both interesting and of long term impact how these questions are decided as the current state of affairs is the new reality requiring, as Mrs. Rice recently commented, a generational commitment.